(Prayer: This writ petition is filed under Article 226 of the Constitution of India praying to issue a writ of certiorari or any other writ, order or direction in the nature of a writ thereby quashing the order dated 18.11.2023 passed by the Karnataka State Administrative Tribunal at Bengaluru in application no.5681/2022, as per annexure-b.)

This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to issue a writ of certiorari or any other writ, order or direction in the nature of a writ thereby quashing the order dated 18.11.2023 passed by the karnataka state administrative tribunal at Bengaluru, in application no.5681/2022 as per (annexure-a).

Oral Order:

H.P. Sandesh, J.

1. W.P.No.9100/2024 is filed by the Registrar-Lokayukta and W.P.No.6443/2025 is filed by the State challenging the order of Tribunal dated 18.11.2023 passed in Application No.5681/2022.

2. The respondents in the said Application No.5681/2022 challenged the penalty imposed against the applicant in coming to the conclusion that he committed misconduct in the departmental enquiry. It is his case that he was appointed as Assistant Engineer on 20.10.1987, thereafter he was promoted to the cadre of Assistant Executive Engineer in the year 1996. Subsequently, he has been promoted to the cadre of Executive Engineer in the year 2007. He was retired from service on 31.05.2015. Pursuant to his appointment, the applicant carried on his duties and responsibilities with honesty, integrity and there is no any adverse remark against him throughout his service career. On the basis of the complaint dated 13.05.2009 filed by one Sri H. Danappa, S/o. Eranna, 3rd Division Contractor made to the Police Inspector, Karnataka Lokayukta, a criminal prosecution as well as departmental enquiry was initiated against the applicant. While the applicant was working as a Executive Engineer No.1, Thungabhadra Canal Division, Munirabad, the complainant had alleged that the applicant had demanded bribe of Rs.56,000/- in order to clear his balance bill of Rs.2,30,000/- and on negotiation, the bribe money was fixed at Rs.50,000/-. A copy of the complaint dated 13.05.2009 is produced as Annexure-A1. On the basis of the said complaint, the Lokayukta police have taken up suo motu investigation and filed its observation note dated 17.08.2011 vide Annexure-A2, wherein it is stated that on 13.05.2009, the Investigating Officer took steps with pancha witness, complainant and shadow witness reached the lake view guest house, Munirabad and as per the pre-arranged proceedings, a sum of Rs.50,000/- was allegedly received by the applicant and they having completed the trap procedure, drawn the mahazar.

3. Thereafter, respondent No.1 entrusted the case of enquiry to the Upa-lokayukta under Section 14-A dated 24.11.2011 vide Annexure-A3. The enquiry officer issued the Articles of Charge vide Annexure-A4 and in the said proceedings, the complainant Sri Danappa was examined as P.W.1 and was also cross-examined, one Sri Mounesh was examined as P.W.2. The copies of the deposition of P.W.1 and P.W.2 are produced as Annexures-A5 and A6. The applicant also submitted his detailed written arguments before the enquiry officer vide Annexure-A7. The enquiry officer on appreciation of the evidence on record and the arguments advanced, filed its enquiry report dated 17.08.2017 vide Annexure-A8, wherein opined that the disciplinary authority has proved the charge as framed against the applicant. The Upa- lokayukta on the basis of the alleged enquiry report makes a recommendation dated 23.08.2017 to respondent No.1 imposing the punishment of withholding of 50% of pension permanently vide Annexure-A9. Applicant already retired from service on 13.05.2015. On the basis of alleged enquiry report and also alleged recommendation of the Upa-lokayukta, respondent  No.1  issued  second  show-cause  notice  to  the applicant on 27.09.2017 vide Annexure-A10. Thereafter, the applicant filed his detailed reply after receiving report of the enquiry officer as per Annexures-A11 and A12.

4. It is contented that the disciplinary authority without appreciating the material on record independently by not applying its independent judicious mind passed the impugned order dated 07.11.2018 only on the basis of the recommendation of Upa-lokayukta. The copy of the order passed by respondent No.1 is produced as Annexure-A13. The applicant challenged the impugned order under Annexure-A13 before the Tribunal in Appeal No.8773/2018 and earlier the Tribunal granted interim order vide order dated 10.12.2018 and director respondent Nos.1 and 2 to release the pensionary benefits and thereafter subsequently the above said application allowed by this Tribunal and set aside the impugned penalty order under Annexure-A13 and directed to reconsider the reply of the applicant to the second show-cause notice keeping in mind the acquittal order of the applicant. The copies of the interim order dated 10.12.2018 and final order of the Tribunal dated 22.11.2019 are produced vide Annexures-A14 and A15 respectively. After the order of this Tribunal as per Annexure- A15, the applicant given representation dated 31.10.2020 and stated that impugned order of punishment dated 07.11.2018 as per Annexure-A13 was quashed by the Tribunal. Hence, the applicant prays to respondent No.1 to release all the consequential benefits, in the meantime, the office of the Advocate General, Belagavi issued a opinion letter dated 28.01.2020 to Head of the Legal Cell, Department of Water Resource, M.S.Building and also the above letter was sent to respondent Nos.1 and 2 and it was opined that not a fit case to challenge the order passed by the Tribunal by filing writ petition in the Hon'ble High Court. The copies of the representation of the applicant dated 31.01.2020 and letter dated 28.01.2020 are produced vide Annexures-A16 and A17 respectively.

5. Even though the applicant given representation as per Annexure-A16 dated 31.01.2020, the respondent No.1 has not considered the same and the applicant again gave one more reminder to the respondent No.1 on 03.09.2020 and enclosed order of the Tribunal was not considered thereby applicant  has  filed  CTA  No.105/2022  on  09.02.2022.  The respondent No.1 not properly considered the order of the Tribunal and also representation of the applicant and also reply of the applicant to the second show-cause notice and finally, the respondent No.1 issued the same impugned order dated 19.02.2022 which is already quashed by the Tribunal without giving any specific reason denied the Court order dated 22.11.2019. The above impugned order passed by the respondent No.1 after lapse of 2 years 4 months from the order of the Tribunal vide order dated 22.11.2019 as per Annexure- A15. Thereafter, contempt proceedings are dropped on 09.09.2022. The copies of the reminder representation dated 03.09.2020 and the impugned order dated 19.03.2022 passed by the respondent No.1 are produced vide Annexures-A18 and A19 respectively. Therefore, being aggrieved by the impugned orders and also challenging the legality and correctness of the same, Application No.5681/2022 was filed before the Tribunal.

6. The respondent-Government also appeared and filed written statement. The Tribunal considered the material available on record as well as the documents produced as Annexures-A1 to A23 and so also the reply statement filed by the respondent.

7. The Tribunal having taken note of the grounds which have been urged in the application i.e., in paragraph Nos.7 and 8 considered the judgment of the Apex Court in M.V. BIJALANI vs. UNION OF INDIA reported in (2006) 5 SCC 88 as well as judgment of the Apex Court in KULDEEP SINGH vs. THE COMMISSIONER OF POLICE & ORS. reported in (1993) 2 SCC 10, particularly paragraph No.25 and paragraph No.6 of the respective judgments and considered the material available on record i.e., the evidence of P.W.1-complainant, who was examined before the Tribunal has turned hostile. The Tribunal also taken out of evidence of P.W.2 in page No.17 and also the evidence of P.W.3-enquiry officer in paragraph No.9 and comes to the conclusion that on perusing the materials both oral and documentary and perusing the enquiry officer’s report in detail comes to the conclusion that findings recorded by the enquiry officer is not in accordance with the materials placed on record both oral and documentary and comes to the conclusion  that  finding  of  the  enquiry  officer  is  perverse  in nature and allowed the application setting aside the order and directed the respondent-authorities to pay all consequential including financial benefits to the applicant to which he is legally entitled to.

8. In both the petitions filed by the Registrar- Lokayukta and also the State, the main contention urged before this Court is that scope of the Tribunal is very limited and though P.W.1 has turned hostile, but the evidence of P.W.2 is very clear with regard to demand and acceptance and he categorically deposed even in the cross-examination that there was demand and acceptance and he withstood the cross- examination. The counsel also vehemently contend that Tribunal committed an error in accepting the grounds which have been urged in the application and would submit that acquittal and criminal case is not binding in disciplinary proceedings as the standard of proof required in criminal case is beyond reasonable doubt and in disciplinary enquiry, it is preponderance of probabilities and relied upon the judgment of the Apex Court in SHASHI BHUSHAN PRASAD vs. INSPECTOR  GENERAL  CENTRAL  INDUSTRIAL  SECURITY FORCE AND KPTCL vs. C. NAGARAJ. The counsel also would submit that the Tribunal cannot adjudicate the matter considering the evidence available on record and committed an error.

9. The learned High Court Government Pleader appearing for the State also in support of the petition filed by the State would vehemently contend that the very approach of the Tribunal is erroneous while conducting the disciplinary enquiry. She also would vehemently contend that when the opportunity is given to the delinquent official and natural justice has been met while conducting the enquiry and also the delinquent official has not disputed the enquiry conducted and the same is in accordance with the procedure established, the Tribunal ought not to have set aside the order.

10. Learned counsel appearing for the petitioner- Registrar-Lokayukta in support of his argument relied upon the judgment of the Apex Court in DEPUTY GENERAL MANAGER (APPELLATE AUTHORITY) AND OTHERS vs. AJAI KUMAR SRIVASTAVA reported in (2021) 2 SCC 612 and brought to notice of this Court with regard to judicial review/validity and scope in a case of departmental enquiry. The counsel referring this judgment would contend that principles have been summarized in this kind of proceedings reiterating that power of judicial review exercised by constitutional courts under Articles 32/136/226 of the Constitution is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and is not akin to adjudication of case and merits as an appellate authority. The counsel also brought to notice of this Court paragraph No.22 and so also paragraph No.24, wherein discussion was made with regard to settled principle that power of judicial review, of the constitutional courts, is an evaluation of the decision-making process and not the merits of the decision itself. The counsel also brought to notice of this Court paragraph Nos.23, 24 and 25 which reads as hereunder:-

                  “23. It has been consistently followed in the later decision of this Court in H.P. SEB v. Mahesh Dahiya [H.P. SEB v. Mahesh Dahiya, (2017) 1 SCC 768 : (2017) 1 SCC (L&S) 297] and recently by the three-Judge Bench of this Court in Pravin Kumar v. Union of India [Pravin Kumar v. Union of India, (2020) 9 SCC 471 : (2021) 1 SCC (L&S) 103] .

                  24. It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.

                  25. When the disciplinary enquiry is conducted for the alleged misconduct against the public  servant,  the  court  is  to  examine  and determine:

                  (i) whether the enquiry was held by the competent authority;

                  (ii) whether rules of natural justice are complied with;

                  (iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion”.

11. The counsel referring paragraph No.26 of the judgment would vehemently contend that in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry.

12. Per contra, learned counsel appearing for the respondent-delinquent official would vehemently contend that even in a case of departmental enquiry, the Tribunal has to look into the material with regard to charge-sheet and charge of bribery and requirement of serious charges like bribery must be specific, definite and detailed and strict adherence to statutory principles and natural justice are also essential even while considering the departmental enquiry. The counsel also would vehemently contend that the Lokayukta has proceeded erroneously and not considered the enquiry report in a proper perspective. The counsel would vehemently contend that the complainant did not support the case of the department and also the evidence of P.W.2, who has been examined before the enquiry officer is also not consistent and his evidence is doubtful. Apart from that, the enquiry officer mainly relies upon the reply which was given immediately to the Police Inspector and the said reply is very clear that amount was put in the bag and not handed over to the delinquent official. The counsel also would submit that department relies upon hand wash of the delinquent official which has turned into pink colour and also relies upon FSL report and the very case of the delinquent official is that he was forced to remove the amount which was in the bag. But, his contention is that it was in the bag and without his knowledge, it was kept in his bag. When such being the case, the same has been discussed by the Tribunal while considering the enquiry report, particularly in paragraph No.8 and even considering the principles laid down in the judgment of the Apex Court in paragraph No.9, observed that perused the materials both oral and documentary and rightly comes to the conclusion that the reasoning and finding of the enquiry officer is perverse. Hence, it does not require any interference.

13. The counsel also relies upon the judgment of the Apex Court in UNION OF INDIA AND OTHERS vs. GYAN CHAND CHATTAR reported in (2009) 12 SCC 78. The counsel referring this judgment would contend that discussion was made with regard to service law departmental enquiry, standard of proof, particularly with regard to charge of corruption/bribery, whether proved, delinquent employee charged of demanding commission for payment of pay allowances, the enquiry officer not examining any witness from whom said demand of bribe was made. All witnesses stating that this was a probable inference for his not disbursing funds and one of the witnesses deposed that one unknown person had told him about such demand, the Apex Court held that serious charges of bribery cannot be proved on mere probabilities  and  hearsay  evidence.  The  counsel  also  would submit that the Apex Court while discussing the same referred to the serious charges like bribery and categorically held that it should be specific, definite and detailed, strict adherence to statutory principles and natural justice are essential and held that in departmental enquiry, standard of proof and proof of suspicion are distinct. The Apex Court also further held that departmental enquiry for misconduct require standard of proof and reasons are to be recorded and discussed the principles regarding conducting enquiry. The counsel referring this judgment would vehemently contend that the Apex Court in detail discussed that departmental enquiry requires standard of proof and preponderance of probability must be proved. But, specific defence is that he was not aware of the fact that amount was put in the bag and the same was recovered from the bag and not from the hands of the delinquent official which has been taken note of by the Tribunal.

14. The counsel also relies upon the Division Bench judgment of this Court passed in WRIT PETITION NO.114543/2015 dated 08.01.2021. The counsel also brought to notice of this Court discussion made in paragraph No.11 as could be seen from the judgment in Spl. (Lok) C. No.4/2007, the demand and acceptance of bribe has not been proved at all. The complainant himself has not supported the case of the prosecution. The counsel also brought to notice of this Court paragraph No.12, wherein discussion was made that already judgment passed by the Special Court has attained its finality.

15. The counsel also brought to notice of this Court order passed in W.P.NO.1226/2022 dated 21.03.2022, wherein this Court also discussed three Bench judgment of the Apex Court in SHASHI BHUSHAN PRASAD vs. INSPECTOR GENERAL, CENTRAL INDUSTRIAL SECURITY FORCE AND OTHERS reported in (2019) 7 SCC 797 which is also discussed by the Tribunal while considering the case of the applicant, wherein the principle is reiterated that though the Tribunal has apparently re-appreciated the facts and evidence of the case of the petitioner in the impugned order, has however not taken note of the aforesaid facts and settled principles of law applicable to the present case and making such observation, allowed the writ petition and set aside the order.

16. Having heard learned counsel for the petitioner i.e., Registrar-Lokayukta, learned HCGP appearing for the respondent-State and learned counsels appearing for the respondents and also considering the material available on record, particularly the grounds which have been urged in both the petitions and the reasoning of the Tribunal, the points that would arise for consideration of this Court are:-

                  (i) Whether the Tribunal has committed an error in allowing the application setting aside the order of penalty and committed an error in directing the respondent-authorities to pay all financial benefits to the applicant and it requires interference of this Court?

                  (ii) What order?

Point No.(i):

17. Having heard learned counsel for the petitioner, learned HCGP appearing for the Lokayuktha, learned counsels appearing for the respondents and also the principles laid down in the judgments referred by both the petitioner as well as the respondents i.e., judgment of the Apex Court in DEPUTY GENERAL MANAGER (APPELLATE AUTHORITY) AND OTHERS vs. AJAI KUMAR SRIVASTAVA reported in (2021) 2 SCC 612 and so also the judgment of the Apex Court in UNION  OF  INDIA  AND  OTHERS  vs.  GYAN  CHAND CHATTAR reported in (2009) 12 SCC 78, the counsel brought to notice of this Court paragraph Nos.26 and 27 of the judgment in SRIVASTAVA’s case, particularly paragraph No.25, wherein it is provided with regard to when the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the Court is to examine and determine:

                  “i) whether the enquiry was held by the competent authority;

                  (ii) whether rules of natural justice are complied with;

                  (iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion”.

18. So also learned counsel appearing for the respondent relied upon the judgment of the Apex Court in UNION  OF  INDIA  AND  OTHERS  vs.  GYAN  CHAND CHATTAR reported in (2009) 12 SCC 78, particularly considering the material in respect of departmental enquiry is concerned categorically held that when the serious charges of bribery is alleged, cannot be proved on mere probabilities and hearsay evidence and also in serious charges like bribery, the Apex Court held that it should be specific, definite and detailed, strict adherence to statutory principles and natural justice are essential. But, in the case on hand, no doubt, a specific charge is framed with regard to alleged misconduct of the respondent in the departmental proceedings, the enquiry officer also submitted the report that charges levelled against the respondent is proved. But, the Tribunal having considered the material on record in detail discussing the same on earlier occasion in Application No.8773/2018 granted the interim order vide order dated 10.12.2018 and subsequently after going through the Government Order dated 07.11.2018 imposing the penalty of withholding 50% of pension permanently on permanent basis, keeping in view the penalty imposed, directed the respondent Nos.1 and 2 shall release the pensionary benefits like DCRG, CVP and leave encashment to the applicant within 3 months today. This interim order was passed subject to the final outcome of the application and subsequently, the application was transferred to Belagavi Bench. The Belagavi Bench disposed of the main application on 22.11.2019 vide Annexure-A15. The application was allowed and penalty order was set aside and direction was given to the respondents therein to consider the explanation/reply submitted by the applicant to the second show-cause notice at Annexure-A12 and the grounds raised by the applicant, including the ground of acquittal by the criminal Court urged by the applicant and to pass appropriate order within a period of 3 months. The same was not complied and even contempt proceedings was also initiated and ultimately approached the authority. Hence, the Tribunal taken note of all these factors and comes to the conclusion that merits of the case has to be considered.

19. The Tribunal also in paragraph No.8 of the order taken note of the judgment of the Apex Court in M.V. BIJALANI vs. UNION OF INDIA reported in (2006) 5 SCC 88 as well as KULDEEP SINGH vs. THE COMMISSIONER OF POLICE & ORS. reported in (1993) 2 SCC 10 and so also discussed the scope of application in detail in view of the judgments referred (supra) and particularly, considering the evidence of P.W.1, who is the complaint witness also taken note of evidence of P.W.2, who is a shadow witness. In the very same paragraph, taken note of the contents of the complaint, wherein he says that vehicle was stopped in front of lake view and approached the DGO and they waited for sometime. It is also his evidence that amount was put inside the bag and the delinquent official has not received the amount and the enquiry officer has also taken note of immediate reply given, wherein he categorically says that when he went inside the bathroom, the amount put inside the bag. It is also not in dispute that subsequently, the amount was got removed through the delinquent official. Hence, his hands were subjected to hand wash and the same turned to pink colour and FSL report is also against the delinquent official. But, the Court has to take note of the fact under what circumstances he was made to remove the amount, as a result, when his hands were subjected to hand wash, the same turned to pink colour and FSL report is also against the delinquent official. It is not the case of the Lokayukta that he had received the amount by hand, but the amount was inside the bag. It is also the case of Lokayukta that he gave signal to keep the amount in the bag and there is no material before the Court with regard to demand and acceptance is concerned, except keeping the amount inside the bag.

20. No doubt, learned counsel appearing for the petitioner-Lokayukta brought to notice of this Court immediate explanation, wherein also once again he says that when he went to bathroom, the bag was seized and having taken note of the said factual aspect into consideration and also the principles laid down in the judgments referred (supra) with regard to the trap as well as the departmental enquiry is concerned, it is not the case of the respondent-delinquent official also that no procedure was followed. But, the very contention of learned counsel appearing for Lokayukta is that point No.(iii) which was discussed in paragraph No.25 of the judgment in AJAI KUMAR SRIVASTAVA’s case was not followed and some evidence is required to prove demand and acceptance and the evidence of P.W.2 itself is enough to come to a conclusion that very case of the Lokayukta is doubtful for the reason that the delinquent official has not received the amount by his hands. But, the amount was kept in the bag and though P.W.2 was examined before the Court, but he says in the evidence that when the bag was searched, they found medicine and not spoken with regard to the amount which was found. When such evidence is given by the shadow witness and his evidence is also not consistent during the course of cross-examination and though he says that amount was found in the bag, the same was taken note of by the Tribunal while considering the material available on record.

21. It is important to note that the scope of judicial review is limited, but at the same time, while coming to the conclusion that there was misconduct, as rightly pointed out by the respondents, no probabilities is made out and in paragraph No.14 of the cross-examination of P.W.2, he admits that when the bag was searched, medicines were found. But, no evidence before the Court with regard to demand and acceptance. When such being the case to prove the factum of misconduct, there must be demand and acceptance and without demand and acceptance, question of misconduct also does not arise. The complainant P.W.1 has turned hostile not only before the departmental enquiry proceedings, even before the Criminal case and it is not in dispute that in criminal case also, he was acquitted and no appeal is filed against the order of acquittal. Apart from that, when the order of acquittal has reached its finality as observed by the Division Bench of this Court referred (supra) and also when the departmental enquiry and serious charges like bribery should be specific, definite and detailed, strict adherence to statutory principles and natural justice are essential and in departmental enquiry, standard of proof and proof of suspicion are very distinctly distinguished, but in the case on hand, it is only a suspicion, as there is no evidence before the Court with regard to demand and acceptance as well as recovery at the instance of the accused and that too, the bait money was inside the bag. When such being the case, we do not find any grounds to interfere with the findings of the Tribunal in coming to such a conclusion. The Tribunal also having considered the principles laid down in the judgments referred (supra) in paragraph No.8 comes to a right conclusion.

                   The contention that it amounts to judicial review cannot be accepted, since there is a glaring error in considering the evidence by the enquiry officer. Hence, the Tribunal interfered while passing an order. Hence, we do not find any ground to interfere with the order passed by the Tribunal and reverse the findings of the Tribunal.

Point No.(ii):

22. In view of the discussion made above, we pass the following:

                  ORDER

                  The writ petitions are dismissed.